OSHA: The ETS is dead as a temporary standard. Long live the ETS as a proposed rule!


The U.S. Department of Labor’s Occupational Safety and Health Administration announced yesterday that it has decided to withdraw the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, covering large employers with 100 or more employees. The withdrawal is effective today.

But check the fine print.

Although OSHA is withdrawing the Vaccination and Testing ETS as an enforceable emergency temporary standard, OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule under section 6(c)(3) of the Act, and this action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commenced by the Vaccination and Testing ETS. See 29 U.S.C. 655(c)(3). 

Eric, translate.

In plain English, when OSHA published the OSHA ETS back in November, that ETS doubled as a proposed rule. Basically, it’s OSHA’s second bite at the apple. And the Supreme Court did say that OSHA can regulate occupation-specific risks related to COVID–19. “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”

So, if OSHA does follow through on rulemaking, it won’t be a carbon copy of the ETS as it existed in November. Indeed, the agency has said that it is “prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.” However, don’t forget about the OSHA General Duty Clause. It requires that all employers provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Otherwise, most employers are free to adopt COVID-19 policies and procedures as they see fit to operate during the pandemic, subject to any state or local restrictions. You can find a list of the states that ban or limit vaccine mandates here.

“Doing What’s Right – Not Just What’s Legal”
Contact Information